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28 FLRA NO. 123


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 85

              Union

      and

VETERANS ADMINISTRATION MEDICAL
CENTER, LEAVENWORTH, KANSAS

              Agency

Case No. 0-AR-1382

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Solbert M. Wasserstrom filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The Agency rejected three grievances filed by the Union. The Union requested arbitration and the grievances were consolidated. Before the Arbitrator, the Union made no arguments on the merits of the grievances. The Union alleged only that the Agency committed several procedural errors, including exceeding in each of the three grievances the time limit set by the parties' agreement within which the Agency's third-step grievance decision was to be rendered. The Agency raised, among other matters, an issue as to the number of representatives to which the Union was entitled at the arbitration hearing.

As to the timeliness of the Agency's decisions, the Arbitrator found that in two of the grievances the Union received a copy of the decision in due time; in the third case the Union and the grievant received a copy of the decision 1 day late; and in each case notice of the decision was received in ample time to pursue the last remaining remedy in arbitration. The Arbitrator further concluded that the Agency made a good faith effort to comply with the requirements of the agreement, that the late delivery was not purposeful, and that no prejudice had been shown because of the late delivery.

The Arbitrator noted that under Article 13, Section 9 of the parties' agreement, if management fails to comply with the time limits for rendering a decision at step 3, the grievant is to prevail provided that, among other things, the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance. The Arbitrator held that under Article 13, Section 9, the imposition of the penalty in this case would not be reasonable because the slight delay of delivery was, at most, harmless error.

As his award, the Arbitrator denied the grievances and awarded two employees compensation for the time that they were present at the hearing as Union representatives.

III. Exceptions

The Union contends that the Arbitrator exceeded his authority by adding to the parties' agreement something that was not intended, and that the award fails to draw its essence from the parties' collective bargaining agreement because the Arbitrator ignored the clear and specific language in the agreement. The Union asserts that the award grants the Agency additional time to respond to a grievance even though the parties specifically established time limits for the responses.

The Agency asserts in its opposition to the exceptions that the Arbitrator correctly applied the agreement.

IV. Analysis and Conclusions

We find that the Union's exceptions fail to establish that the award is contrary to the Statute. The Union's exceptions constitute nothing more than disagreement with the Arbitrator's finding and conclusion that the penalty provided by Article 13, Section 9 should not be imposed because it would be unreasonable under the circumstances of the case. Questions as to whether the parties have complied with the procedural requirements of a negotiated grievance procedure are questions for resolution by an arbitrator. United States Environmental Protection Agency, Region IV, Atlanta, Georgia and National Federation of Federal Employees, Local 1907, 5 FLRA 277 (1981). Disagreement with an arbitrator's determination with respect to the procedural arbitrability of a  grievance, including his determination that the penalty established by the agreement for procedural noncompliance should not be imposed under the circumstances, is not a ground for finding the award deficient. See Department of the Army, Fort Drum, New York and National Association of Government Employees, Local R2-61, 10 FLRA 22 (1982). See also Headquarters, Fort Sam Houston, Department of the Army and Local 2154, American Federation of Government Employees, AFL - CIO, 15 FLRA 974 (1984); Pearl Harbor Naval Shipyard and Hawaii Federal Employees Metal Trades Council, 10 FLRA 24 (1982).

V. Decision

The Union's exceptions are denied.

Issued, Washington, D.C.,September 15, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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